Citation Nr: 1241355
Decision Date: 12/04/12 Archive Date: 12/12/12
DOCKET NO. 10-14 052 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right lower extremity from February 14, 2006, to August 23, 2009, and to a rating higher than 20 percent since August 24, 2009.
2. Entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity from February 14, 2006, to August 23, 2009, and to a rating higher than 20 percent since August 24, 2009.
3. Entitlement to an effective date earlier than August 24, 2009 for a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Calvin Hansen, Attorney
ATTORNEY FOR THE BOARD
Sarah Richmond, Counsel
INTRODUCTION
The Veteran had active military service from March 13 to May 29, 1969.
This appeal to the Board of Veterans' Appeals (Board/BVA) is from ratings decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In October 2006, the RO granted service connection for radiculopathy of the right and left lower extremities and assigned initial 10 percent ratings retroactively effective from February 14, 2006, on the premise that date was when the Veteran had filed a claim for a higher rating for his underlying low back disability (chronic mechanical low back strain, previously diagnosed as spondylosis with spondylolisthesis). Also in that decision, the RO confirmed and continued the existing 20 percent rating in effect for this underlying low back disability, and in the notice of disagreement (NOD) he filed later in October 2006 he did not appeal these initial 10 percent ratings for the bilateral lower extremity radiculopathy associated with his low back disability, only instead for a rating higher than 20 percent for this underlying low back disability, as well as other claims regarding whether there was new and material evidence to reopen his claims of entitlement to service connection for his bilateral knee and hip disabilities.
The Board's subsequent February 2009 decision therefore only addressed these other claims. The Board granted his petition to reopen his claims of entitlement to service connection for left and right knee disorders, also for a right hip disorder, but then proceeded to deny these claims on their underlying merits, also a claim for arthritis of his lower extremities. However, the Board instead remanded the remaining claim for a rating higher than 20 percent for the low back disability
for further development and consideration - including especially providing him notice then, but no longer, required by the Veterans Claims Assistance Act (VCAA). See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling the lower Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (concluding that "generic" notice in response to a claim for an increased rating is all that is required, not also notice of specific diagnostic codes (DCs), etc.).
In a May 2009 decision and supplemental statement of the case (SSOC), on remand, the RO increased the rating for the underlying low back disability from 20 to 40 percent retroactively effective as of May 4, 2009, the date of a VA compensation examination.
In June 2009, in response, the Veteran submitted a statement in support of claim (VA Form 21-4138) indicating he was filing an NOD regarding the following issues: 1) entitlement to an increased evaluation for service-connected disability; 2) entitlement to an effective date prior to June 1, 2009, for the award of 50% disability; and 3) entitlement to a TDIU. [Note: his reference to "50% disability" was, in actuality, referring to the combined rating for his
service-connected disabilities, that is, the now higher 40% rating for his low back disability along with the additional 10 percent ratings for the associated radiculopathy affecting each of his lower extremities. See 38 C.F.R. § 4.25 (VA's combined ratings table). And the reference to the June 1, 2009, effective date was, in actuality, the date that he had first received payment at this higher level of compensation, i.e., the first day of the month following the effective date of his award.]
Another SSOC issued later in June 2009 denied a rating higher than 20 percent for the low back disability prior to May 4, 2009, and a rating higher than 40 percent for this disability since. However, a July 2009 deferred rating decision and letter to the Veteran and his attorney indicate that SSOC was sent in error, as the RO was now taking his June 2009 statement in support of claim (on VA Form 21-4138) instead as a new NOD, so a new appeal for an effective date earlier than June 1, 2009, for the award of 50% disability and, more specifically, as an appeal of the payment date of June 1, 2009 for the overall combined percentage of 50% disabling. If that was not his intention, he was to notify the RO immediately. The RO also indicated this appeal would not be combined with the already existing appeal concerning the rating for his low back disability.
The RO then proceeded to deny the TDIU claim in a decision dated August 4, 2009, and after receiving notification of that decision on August 12, 2009, the Veteran submitted an NOD later that same month, on August 24, 2009, through his attorney, appealing the denial of this TDIU claim. Also on August 24, 2009, he submitted a formal TDIU application (VA Form 21-8940), additionally requesting review of this claim by a Decision Review Officer (DRO). As well, so also on August 24, 2009, he submitted another statement in support of claim
(VA Form 21-4138) indicating he was filing for an increase in his
service-connected disability for the following conditions: right and left lower extremity radiculopathy associated with the chronic mechanical low back strain with degenerative changes, so referring to his low back disability. He indicated the radiculopathy had worsened.
In another decision issued later that year, in November 2009, the RO increased the ratings for this left and right lower extremity radiculopathy from 10 to 20 percent as of August 24, 2009, on the premise that was when the Veteran had filed his claim for higher ratings for this bilateral lower extremity radiculopathy. He appealed that decision to the Board, so this claim now concerns whether he was entitled to initial ratings higher than 10 percent for this bilateral lower extremity radiculopathy prior to August 24, 2009, and whether he has been entitled to ratings higher than 20 percent for this radiculopathy since.
Even though he did not appeal the RO's earlier October 2006 decision granting service connection for this bilateral lower extremity radiculopathy and assigning the initial 10 percent ratings for it, only instead appealed that decision's denial of a rating higher than 20 percent for his underlying low back disability, the Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they
contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). And although there is no submission or communication from him that may be construed as a timely NOD with that October 2006 rating action, as concerning these specific claims, VA was in receipt of new and material evidence within one year of that rating decision addressing this radiculopathy of his lower extremities, so in turn must relate any subsequent evidence back to that original claim. 38 C.F.R. § 3.156(b) (2011); see again also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Specifically a February 2007 VA examination report addressing his lumbar spine, so the underlying low back disability, also noted associated impairment in his lower extremities including complaints of radiating aching, burning, and sharp stabbing pain in his legs. In addition, he stated that he was previously employed as a painter but was unable to perform his job duties and responsibilities satisfactorily, including climbing ladders, and therefore was then currently unemployed. Moreover, on objective physical examination, motor examination caused spasm in his posterior thighs and a straight leg raising testing caused increased pain in his thighs.
A contemporaneous March 2007 VA treatment record also shows complaints of "twitching" in the legs, especially at night, making it difficult for him to go to sleep. Therefore, as the rating criteria for the radiculopathy of the lower extremities found at 38 C.F.R. § 4.124a, DC 8520, consider whether there is mild, moderate, moderately severe, or severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, and this evidence suggests an increase in severity beyond 10 percent (for mild impairment) in his lower extremities, it is considered to be new and material evidence concerning these claims for higher ratings for these disabilities. Thus, this evidence is considered as having been filed in connection with his February 14, 2006 claim of entitlement to service connection for a bilateral leg condition (referring to this bilateral lower extremity radiculopathy). Therefore, the October 2006 rating action did not become final and binding on him as concerning the ratings for this bilateral lower extremity radiculopathy, rather, has remained pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).
His claim, then, for an effective date earlier than August 24, 2009, for the assignment of the higher 20 percent ratings for his bilateral lower extremity radiculopathy is subsumed or encapsulated by the Board's consideration of whether he was entitled to initial ratings higher than 10 percent from the time of his award on February 14, 2006, until he received the higher 20 percent ratings as of August 24, 2009.
Consider also that, in December 2009, the RO granted his derivative TDIU claim and assigned the same effective date of August 24, 2009. And, in response, he also has appealed for an earlier effective date for his TDIU.
In this decision the Board is granting higher 20 percent ratings for the left and right lower extremity radiculopathy from an earlier effective date, namely, back to February 14, 2006 (so not just as of August 24, 2009). The Board also is granting an earlier effective date of May 4, 2009, for the TDIU since, as will be explained, that earlier date was when, during his VA compensation examination, the Veteran first claimed entitlement to this benefit (not just as of August 24, 2009, when he submitted his formal TDIU application). However, the issue of entitlement to an even earlier effective date, meaning even before May 4, 2009, for this TDIU, is being remanded because, until that date, he did not have sufficient ratings to satisfy the threshold minimum rating requirements of 38 C.F.R. § 4.16(a). So for all times prior, he may only receive this benefit on an extra-schedular basis under the alternative provisions of § 4.16(b).
FINDINGS OF FACT
1. Throughout the entire period of this appeal, i.e., since February 14, 2006, the radiculopathy affecting the Veteran's right and left lower extremities has been manifested by mildly-to-moderately decreased sensation in both lower extremities, and some findings of mildly-to-markedly decreased deep tendon reflexes, with functional impairment causing unsteadiness with walking and difficulty with prolonged sitting due to symptoms of shooting/stabbing pain, numbness, and fatigue.
2. His date of claim of entitlement to a TDIU on a derivative basis also is February 14, 2006, the date he filed his claims for a higher rating for his low back disability and for service connection for his bilateral leg condition (referring to his left and right lower extremity radiculopathy as secondary to or associated with his already service-connected underlying low back disability).
3. He did not however meet the schedular criteria for a TDIU until May 4, 2009, the date of increase from 20 to 40 percent for his low back disability and when additionally considering he now also has higher 20 percent (rather than 10 percent) ratings for the associated lower extremity radiculopathy, and when considering these disabilities result from a common etiology and that the lower extremity radiculophathy requires consideration of the bilateral factor.
4. It is shown that he was unemployable on account of these service-connected disabilities at least as of May 4, 2009, meaning as of that date no longer capable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison.
CONCLUSIONS OF LAW
1. The criteria are met for a higher 20 percent rating, though no greater rating, for the radiculopathy of the right lower extremity as of February 14, 2006 (so not just, instead, as of August 24, 2009). 38 U.S.C.A. §§ 1155, 5110(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, DC 8520.
2. The criteria also are met for a higher 20 percent rating, though no greater, for the radiculopathy of the left lower extremity as of February 14, 2006 (so also not just, instead, as of August 24, 2009). 38 U.S.C.A. §§ 1155, 5110(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, DC 8520.
3. As well, the criteria are met for an earlier effective date of May 4, 2009, for the TDIU on a schedular basis. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. §§ 3.400(b)(2)(i) (2011), 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).
To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
These VCAA notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).
Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U.S. Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court could conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id.
The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial."
Vazquez-Flores, 22 Vet. App. at 46; see also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless).
The Veterans Court further held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life.
On appeal, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), the Federal Circuit vacated and remanded important aspects of the Veterans Court's holding in Vazquez-Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." Vazquez, at 1281.
It since has been held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased-rating claim, the appellant's burden to demonstrate prejudice at the Court (CAVC) level does not shift to VA unless notice is not provided at all. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).
This appeal arises from both a grant of service connection for radiculopathy of the lower extremities in the October 2006 RO decision with the subsequent submission of new and material evidence within one year of that decision to keep it pending; and the Veteran's disagreement with the effective date assigned following the granting of his TDIU in a more recent December 2009 RO decision.
As to his initial claim of entitlement to service connection for the radiculopathy affecting his lower extremities, the RO provided him pre-adjudicatory notice regarding this service-connection claim in a March 2006 letter, so in the preferred sequence. In the October 2006 decision, the RO granted service connection for this bilateral lower extremity radiculopathy retroactively effective from the date of receipt of his claim on February 14, 2006.
That October 2006 rating decision remained pending as new and material evidence was received within one year of that decision. Meanwhile, in August 2009, so in the interim, he filed a formal claim for a TDIU by filing a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). And in the December 2009 rating decision, the RO granted a TDIU retroactively effective from August 24, 2009. He then appealed for an earlier effective date for his TDIU, just as he has concerning the ratings for his bilateral lower extremity radiculopathy. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal these "downstream" issues).
It does not appear the RO sent him a VCAA notice letter regarding his initial claim for a TDIU, but this at most is harmless error because the RO granted this claim, regardless. 38 C.F.R. § 20.1102. Moreover, in cases, as here, where the appeal for an earlier effective date arose in another context - namely, the Veteran first trying to establish his underlying entitlement to service connection for a disability, and then, once service connection was granted for that disability, to a derivative TDIU, and this benefit also since has been granted, the claims as they arose in their initial context have been substantiated. Therefore, additional VCAA notice is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the effective date assigned, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating or effective date element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement concerning the downstream issue is not resolved. And, here, the RO issued a rating decision in December 2009 and an SOC in July 2010 addressing this downstream earlier effective date claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than August 24, 2009. The Veteran also received an SOC concerning the disability ratings and effective date for his lower extremity radiculopathy, so also concerning these "downstream" issues as they relate to these other claims. Thus, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008); Huston v. Principi, 17 Vet. App. 195 (2003).
And as concerning the duty to assist him with his claims, VA has obtained his service treatment records (STRs), VA and private medical records, and records from the Social Security Administration (SSA). VA also has assisted him in obtaining other potentially relevant evidence and provided medical examinations assessing the severity of his disabilities. All known and available records relevant to these claims have been obtained and associated with his claims file for consideration, and he has not contended otherwise.
Consequently, the Board finds that all necessary development has been accomplished, and therefore appellate review of the claims may proceed without prejudicing the Veteran, especially since the Board is at least partly granting the claims. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA.
II. Increased Ratings for the Radiculopathy of the Lower Extremities
The Veteran filed a service-connection claim for a bilateral leg condition secondary to his already service-connected low back disability on February 14, 2006. In a subsequent October 2006 decision, the RO granted service connection for this bilateral leg condition, specifically, for radiculopathy of his lower extremities, assigning 10 percent ratings for each lower extremity retroactively effective from the date of receipt of his claim on February 14, 2006. In November 2009, the RO increased these ratings to 20 percent, but only retroactively effective from August 24, 2009, on the premise that was when he had filed his claim for higher ratings for these disabilities.
Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.
In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. And if there has been variance in the severity of the disability since the effective date of the award, the rating must be "staged" to compensate him for this change in disability over time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court since has extended this practice even to claims that do not involve initial ratings, rather, also established ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the relevant temporal focus is not just from when he filed the claim, instead, from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Id. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions.
The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992).
Since associated with his low back disability, the radiculopathy of the Veteran's lower extremities is rated under 38 C.F.R. § 4.124a, DC 8520, for impairment of the sciatic nerve. Under this DC, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve; this is when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost.
The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with the application of the bilateral factor. 38 C.F.R. § 4.124a; see also 38 C.F.R. § 4.26.
A July 2006 VA examination report shows the Veteran had constant moderate severe pain in his low back that radiated down both legs on a daily basis. The pain was described as aching, sharp, and shooting pain. He also complained of numbness and tingling in both legs on a daily basis and shooting pains often. He could walk one block and avoided all activities. On physical examination he had an antalgic gait and poor propulsion, and appeared to be unsteady.
Deep tendon reflexes were intact, and ankle jerks were slightly decreased in both lower extremities. Pulses were intact in both lower extremities, but he did have a mild decrease in sensation to pinprick. Light touch and monofilament testing in the lower legs was intact. There was no muscle wasting or muscle loss but he did have difficulty ambulating. The diagnoses included radiculopathy symptoms involving both lower extremities, secondary to disc disease.
He had another VA examination in February 2007. He described moderate spasm in his lower back that radiated down both legs. He also described a constant pain in his legs, which he rated at 6 to 7 out of 10 at baseline. He indicated that he had primary and radiating aching, burning, lancinating, sharp, shock-like, shooting, and stabbing pain in the legs. He had functional limitations in walking and was able to walk a quarter of a mile. He was previously employed as a painter but was then currently unemployed as he was unable to perform his duties satisfactorily, including climbing ladders.
On physical examination his sensation to light touch in his lower extremities was intact and normal bilaterally. He had a motor examination, which was difficult. In trying to test the strength of hip flexion and knee extension he did experience increased pain and spasm in the back and posterior thighs. Deep tendon reflexes were 3+ at his knee and ankle bilaterally. Straight -leg raise did cause increased pain in his back and posterior thigh bilaterally.
In March 2007, a VA treatment record notes he complained of "twitching" of his legs and had noted this at night. He stated that this leg condition prevented him from going to sleep at night.
A May 2009 VA examination report shows the previous history was noted, including that in 2006 he had a mild sensory radiculopathy identified in the lower legs and feet. It also was noted that he weighed 225 pounds, could walk only a block, had an antalgic gait, and also had an MRI showing a large left paracentral disk bulging between lumbar two and three, and multi-level disk space narrowing.
In 2007, he had marked difficulty in both walking and standing but sensation in his lower extremities was thought to be normal at that time. On physical examination he had numbness, paresthesias, and leg or foot weakness. He also had severe, constant, radiating pain into both legs from his spine that was described as a "lightening" pain.
On objective evaluation his gait was normal. His muscle tone was normal with no signs of atrophy. Light touch and pinprick sensation were decreased in both feet in the distribution of the medial and lateral plantar nerve common peroneal superficial peroneal and sural nerve. The diagnoses included large disk bulging between lumbar 2 and 3 with sensory radiculopathy in both feet and bilateral sciatica.
A June 2009 private treatment record shows he had diminished pain perception in his legs bilaterally. Motor examination was 5 out of 5 in all four extremities. The impression was peripheral neuropathy and possible lumbar radiculopathy
co-existing. A July 2009 private treatment record shows some generalized pain in his legs; there were no sensory changes. Deep tendon reflexes were intact.
An August 6, 2009 electromyograph (EMG) report showed a normal study; there was no electrophysiologic evidence to suggest a large fiber polyneuropathy or radiculopathy or right lumbosacral spine radiculopathy.
An August 12, 2009 private Spine Center treatment record shows complaints of numbness in the lower extremities, including the thighs, knees, calves, ankles, and feet. He also described pain in his lower extremities as a deep ache, sharp, shooting, burning, stabbing, and pins and needles. Pain on a scale of 1 to 10 was at best a 6, and at worsts a 10. The pain was daily and constant and was exacerbated by bedrest, bending, changing positions, coughing/sneezing, lying down, lifting, sitting, prolonged positions, standing, walking, working, exercising/stretching, and riding in a car.
On physical examination he had poor balance and lacked coordination. He also had leg weakness. He demonstrated a left antalgic gait. Deep tendon reflexes showed the patellar and Achilles reflex were trace bilaterally. There was no muscle atrophy, adenopathy, or edema. There was non-physiologic giveway weakness in all motor groups of the right lower extremity. He was able to toe walk bilaterally but had difficulty due to weakness, pain, and balance. Straight leg raise was positive for sciatica on the right at 25 degrees; and straight leg raise on the left was positive for sciatica at 40 degrees. Sensation to pinprick and light touch was intact in all lower extremity dermatomal and peripheral nerve distributions. Vascular examination showed that peripheral pulses were normal with no venous stasis changes, varicose veins, cyanosis, clubbing, or edema.
On August 14, 2009, a private neurological treatment record shows he complained of numbness and tingling in his legs. The August 6, 2009 EMG study was noted. On further questioning it turns out there was a burning quality of the pain, and it seemed to involve both legs up to the lower back. The symptoms occurred when he sat for too long or walked a few blocks. The examiner determined this history was suggestive of a lumbosacral stenosis, but also noted that given the fact that the Veteran had a normal EMG, this might not be likely. Subsequent MRI testing that day, in fact, showed no evidence of foraminal stenosis secondary to subluxation of the L5 on S1.
Thereafter, the Veteran underwent a Doppler study on August 18, 2009 because of right leg edema, which showed no evidence of deep venous thrombosis.
He was assigned 10 percent ratings for the impairment associated with the radiculopathy of his lower extremities based on the aforementioned evidence. However, on review of these medical records, the Board finds that the next higher 20 percent rating is more appropriate, so this next higher rating must be assigned. 38 C.F.R. §§ 4.3, 4.7. Specifically, the medical evidence shows he had constant moderate severe pain radiating down both legs on a daily basis. He had both primary and radiating aching, burning, lancinating, sharp, shock-like, shooting, stabbing, burning, and pins and needles pain in the legs. He also complained of numbness and tingling in both legs on a daily basis and had some instability in his gait on objective evaluation. In addition he had mild decrease in sensation to pinprick in the lower extremities and functional impairment in that he was not able to walk more than one block, or a quarter mile. He also had stopped working as a painter because he was unable to climb the ladders. Straight-leg raise testing also caused increased pain in his posterior thighs bilaterally. In addition he complained of a "twitching" sensation in his legs at night.
This evidence more closely approximates the criteria for moderate incomplete paralysis of the sciatic nerve, which warrants a 20 percent rating, rather than just mild incomplete paralysis, which instead warrants the lesser 10 percent rating under 38 C.F.R. § 4.124a, DC 8520.
An even higher 40 percent rating is not warranted, however, as the medical evidence is not consistent with moderately severe incomplete paralysis of the sciatic nerve. Physical examination showed that deep tendon reflexes and pulse were intact in both lower extremities. Light touch and monofilament testing in the lower legs also were intact. In addition, while he had difficulty ambulating, there was no muscle wasting or muscle loss. EMG studies did not show any objective evidence of peripheral neuropathy or lumbar radiculopathy. As his impairment appears to be wholly sensory, the rating at most can be for the moderate degree under 38 C.F.R. § 4.12a, which, under DC 8520, warrants at most a 20 percent rating. The 20 percent rating, however, should extend back to receipt of this claim on February 14, 2006, so not just as of August 24, 2009, because this radiculopathy was as severe then as it was as of this more recent date. Again, though, no higher rating is warranted at any time since February 14, 2006, so even since August 24, 2009.
He had a VA peripheral nerves examination in October 2009. On physical examination he had a slightly antalgic gait and it was painful to ambulate. It was noted that the EMGs done recently did not show any large fiber changes. Sensation was moderately decreased in both lower extremities with light touch, pinprick, and monofilament testing. Likewise, deep tendon reflexes were also moderately to markedly decreased. There was no muscle wasting or muscle loss noted.
There were no specific joints affected. Pulses were intact. He could walk about one half block and rarely fell. Walking aggravated the sensation complaints in the lower extremities. He would complain of sensation symptoms and fatigue and functional loss with worsening symptoms in both lower extremities that interfered with ambulation. He could sit for about 15 to 20 minutes, and then had to get up and move around. He used gabapentin seven times a day, which was only helping somewhat.
In April 2010, he was hospitalized at a VA facility with complaints of right lower leg swelling and cellulitis that had spread to his groin and face, which was unresponsive to antibiotic treatment. He also was feverish to touch. A Doppler study was performed and there was no evidence of deep vein thrombosis (DVT).
The medical evidence therefore does not show that ratings higher than 20 percent are warranted for the radiculopathy of the lower extremities. The record shows that sensation was moderately decreased in both lower extremities with light touch, pinprick, and monofilament testing. Likewise, deep tendon reflexes were also moderately to markedly decreased. He also continued to complain of functional impairment with walking and sitting due to worsening symptoms of fatigue. While he indicated worsening symptoms in his lower extremities, the findings still demonstrate at most moderate incomplete paralysis of the sciatic nerve. He is not shown to have the moderately severe incomplete paralysis of the sciatic nerve that is required of the next higher rating of 40 percent. There has been no muscle wasting or muscle loss noted, and pulses have been intact. He could walk about one half block and rarely fell. The findings of right lower leg swelling and cellulitis in April 2010 were not specifically attributed to his service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). But even if they were, the findings of skin problems involving the right leg with swelling are not consistent with moderately severe incomplete paralysis. In other words, there was no indication the cellulitis affected his neurological functioning in his right leg.
The Board acknowledges the Veteran's complaints of pain and numbness in his lower legs, causing limited mobility when walking, and acknowledges he is competent to make these assertions. See Barr v. Nicholson, 21 Vet. App. 303,
307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses - that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also accepts the credibility of his assertions concerning the impairment in his lower extremities.
The Board must also consider the objective clinical findings, however, so not just his lay testimony and statements regarding the severity of his lower extremity radiculopathy. And a large measure of this determination is predicated on objective data, i.e., the results of clinical testing of his neurological functioning, so not just on his complained about symptoms alone. This evidence, on the whole, shows he deserved higher 20 percent ratings from the outset of his award, so even as of February 14, 2006, rather than just as of August 24, 2009. To this extent, his appeal of these claims is being granted. However, the evidence does not support assigning even higher ratings.
With respect to the effective date for the assigned ratings of 20 percent, the effective date has to be February 14, 2006, the date of his service-connection claim for a bilateral leg condition secondary to his service-connected low back disability, and no earlier. He previously had filed service-connection claims for knee and hip conditions, also secondary to his low back disability, but which were denied by the RO in July 2000 and January 2002. Moreover, disabilities specific to his hip and knees are separate disabilities than radiculopathy of his lower extremities and, thus, cannot be considered the same claim. The Federal Circuit Court has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The Veterans Court has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively, after there has been a finding of fact based upon competent medical evidence. Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009).
Since he did not file his claim for service connection for a bilateral leg condition, secondary to his low back disability, within one year of his discharge from service, the effective date of the eventual grant of service connection for his lower extremity radiculopathy cannot be earlier than when he eventually filed his claim for this specific disability. 38 U.S.C.A. § 5110(a) and (b)(1); 38 C.F.R. § 3.400(b)(2). Moreover, the effective date for a secondarily service-connected condition (which, here, is his lower extremity radiculopathy) is not identical to that of the original condition (his low back disability); the effective date could arise no earlier than the date on which he applied for benefits for the condition at issue, so not until he filed his claim specifically for his lower extremity radiculophathy. See Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). The effective date assigned for a secondary service-connected condition (radiculopathy) does not have to be the same as the effective date for the underlying condition (low back) simply because 38 C.F.R. § 3.310 states that a "secondary condition shall be considered a part of the original condition." See Ross v. Peake, 21 Vet. App. 528 (2008).
The Veteran has, however, had continued impairment of numbness and pain in his lower extremities with some unsteadiness walking since the filing of his claim for the causative lower extremity radiculopathy on February 14, 2006. Therefore, it is reasonable to conclude that the symptoms have not changed over the years since he originally filed this claim. The Board therefore is not "staging" this rating under Fenderson, rather, making this rating (albeit higher than he initially was given) constant since the filing of this claim.
For all the foregoing reasons, the Board finds that the evidence supports higher 20 percent ratings, though no greater, for the radiculopathy of the lower extremities back to the receipt of this claim on February 14, 2006. To the extent he is alleging even greater disability, the preponderance of the evidence is against his claims; so in this other respect his claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
III. Extra-schedular Rating
The Rating Schedule represents as far as is practicable the average impairment of earning capacity. Ratings will be based on average impairment so generally sufficient to compensate a Veteran for his level of impairment. To afford justice in exceptional situations, however, an extra-schedular rating can be provided. See 38 C.F.R. § 3.321(b)(1).
The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.
Here, though, the symptoms shown to be associated with the radiculopathy affecting the Veteran's lower extremities - namely, his decreased sensation, pain, numbness, and resultant difficulty walking - are contemplated by the schedular rating criteria. All of these symptoms are factors in determining whether he has just relatively mild versus moderate, moderately severe or severe neurological impairment. Thus, his existing 20 percent ratings reasonably describe the extent and severity of his disability, so referral for consideration of extra-schedular ratings is not warranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).
IV. Entitlement to a TDIU prior to August 24, 2009
The RO granted a TDIU in its December 2009 rating decision, but only retroactively effective from August 24, 2009, which is the date the RO had received a formal claim for a TDIU on a VA Form 21-8940 (i.e., a TDIU application). The RO also noted in its decision that that was the date when the Veteran first met the schedular requirements for a TDIU, referring to those enumerated in 38 C.F.R. § 4.16(a). He appealed that December 2009 decision, stating in June 2010 that he believed the effective date for his TDIU should be as early as 1971, so back to just after his military service ended in May 1969.
A TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his
service-connected disability or disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. A TDIU may be granted under 38 C.F.R. § 4.16(a) if he meets certain schedular rating requirements, or on an extra-schedular basis under § 4.16(b), even if he does not, so long as he is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities.
The RO's assignment of August 24, 2009 as the effective date for his TDIU reflects the RO's view that that was the date when he met the schedular requirements for a TDIU, as that was also the effective date for the RO's grant of higher 20 percent ratings for the radiculopathy affecting his lower extremities associated with his low back disability. That also, as mentioned, happens to be the date when he filed a formal claim for a TDIU by submitting the application on VA Form 21-8940.
Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). The Court has held that a request for a TDIU "is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim).
Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).
The effective date for an increased rating [for a disability once service connected] will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o). In Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010), the Federal Circuit Court explained that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans with a one-year grace period for filing a claim following an increase in the severity of a service-connected disability.
The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 56-57 (1995).
VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.
When the informal claim pertains to an increased evaluation for a service-connected disability, the request will be accepted as a claim. 38 C.F.R. § 3.155(c).
Once service connection has been established, receipt of specified types of medical evidence, including VA examination reports, will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157. For example, the date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of such a claim. 38 C.F.R. § 3.157(b)(1). Similarly, under the provisions of 38 C.F.R. § 3.157(b)(2), (3), an informal claim for increase will be initiated upon receipt of evidence from a private physician or layman or from state and other institutions, including SSA. See Servello v. Derwinski, 3 Vet. App. 196, 200 (1992) (holding that a VA examination report constituted an informal claim for a TDIU).
The Court has held however that, when determining whether a particular VA medical record qualifies as a "report of examination" under 38 C.F.R. § 3.157(b)(1), the medical record in question must describe the results of a specific, particular examination. Massie v. Shinseki, 25 Vet. App. 123, 133 (2011). In addition, "[a]lthough the language of § 3.157(b)(1) does not expressly require that a report of examination or hospitalization indicate that the Veteran's service-connected disability worsened since the time it was last evaluated, any interpretation of § 3.157(b)(1) that does not include such a requirement would produce an absurd result. Without such a requirement, every medical record generated by the Veterans Health Administration (VHA) and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1). This would unnecessarily burden VA by requiring it to treat every such medical record as an informal claim for an increased disability rating, even where a particular medical record shows no change in the Veteran's condition." Id., at 134.
Normally, the effective date assignable for an increased rating and/or TDIU rests on two separate, relatively simple determinations. See 38 C.F.R. § 3.400(o)(1) and (2). First, there needs to be a finding as to the date on which the appellant initiated his increased rating/TDIU claim by formal or informal claim. Second, there needs to be a finding regarding on what date the medical evidence of record showed his entitlement to a higher rating or TDIU arose, that is, at what point in time in the case of a TDIU did his service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. See 38 U.S.C.A. § 5110(b); 38 C.F.R. §§ 3.151, 3.400(o), 4.15, 4.16.
Turning now to the facts of this particular case. the RO granted entitlement to a TDIU effective August 24, 2009, on the basis of the Veteran then meeting the schedular requirement for a TDIU as of that date and medical evidence establishing his unemployability as of that date on account of his three service-connected disabilities, those being his low back disability and the associated radiculopathy of his right and left lower extremities.
It is unclear exactly why he believes the effective date for his TDIU should go all the way back to 1971, as even he has acknowledged in the course of being evaluated and treated for his service-connected disabilities working as a painter, and perhaps even in other jobs, well after then and even continuing up to at least 1999 or thereabouts. He was separated from military service in 1969 and filed his first service connection claim for his low back disorder in 1973. That claim was denied by the RO in August 1973 on the basis that his low back disability clearly and unmistakably had pre-existed his service. The RO therefore determined there was no presumption of soundness when entering service since the condition was discovered so close to the date of his induction, and since there was no evidence of injury in service other than from the stress associated with activity. A subsequent petition to reopen this claim for the low back disability in June 1999 was subsequently denied by both the RO and Board in October 1999 and March 2001, respectively.
His entitlement to service connection for this low back disability was later granted in December 2005, however, and a 20 percent initial rating assigned retroactively effective from October 24, 2002, the date of receipt of his most recent petition to reopen this claim. That initial rating was appealed to the Board and in turn the Board remanded this claim to the RO. In May 2009, the RO granted a higher 40 percent rating for this low back disability, retroactively effective from May 4, 2009, the date of a VA compensation examination reassessing the severity of this disability. The Board confirmed and continued these "staged" ratings of 20 and 40 percent in an April 2010 decision, denying any further increase for this low back disability.
The Veteran filed an initial claim for service connection for an associated bilateral leg condition on February 14, 2006, so as secondary to this
service-connected low back disability. The RO later granted service connection for radiculopathy of his lower extremities retroactively effective from the receipt of this claim on February 14, 2006. And in this present decision the Board has made the higher 20 percent ratings for this disability retroactively effective from an earlier date, namely, back to the receipt of this claim on February 14, 2006, rather than just as of August 24, 2009.
As such, the Veteran's present service-connected disabilities are: low back strain with degenerative changes, 20 percent from October 24, 2002, and 40 percent from May 4, 2009; left lower extremity radiculopathy associated with low back strain, 20 percent from February 14, 2006; and right lower extremity radiculopathy associated with low back strain, 20 percent from February 14, 2006. As his three service-connected disabilities result from common etiology, they may be considered as one, collective, disability under 38 C.F.R. § 4.16(a). Thus, his combined rating is 20 percent from October 24, 2002; 50 percent from February 14, 2006 with the application of the bilateral factor (see 38 C.F.R. § 4.26); and 60 percent from May 4, 2009, also with the application of the bilateral factor. Based on these ratings, he met the schedular criteria for a TDIU effective May 4, 2009 (i.e., one disability shall be rated as 60 percent or more). See 38 C.F.R. § 4.16(a).
In addition to meeting the schedular requirements for a TDIU, the evidence must show that he is unemployable solely due to his service-connected disabilities. Id. The record shows he has been awarded SSA disability benefits and found unable to work due to his low back disability and a (non-service-connected) psychiatric disorder since 1999. On his formal TDIU application (VA Form 21-8940) he submitted in August 2009, he stated that he had been self-employed as a painter but had not worked since February 1999. He indicated that he was unable to work because of his service-connected back and leg disabilities.
A July 2006 VA spine examination report shows he stated that he had to stop working in 1999 because of problems with his back and legs. He complained of constant back pain and numbness and tingling into both legs. He appeared to be unsteady and could only walk for one block or sit for one half hour to an hour and avoided all activities. A February 2007 VA spine examination report also shows complaints of mild fatigue and decreased motion with constant pain in the low back and legs.
Private treatment records dated in August 2009 show he had difficulty walking because of the radiculopathy to the lower legs and that the pain in his back and lower legs was aggravated by standing, walking, and working, among other activities. In a VA peripheral nerves examination report in October 2009, he reiterated that he had stopped working because of his low back disability.
In addressing his assertion of entitlement to an earlier effective date for his TDIU, one must consider that his TDIU claim did not so much emanate from his claim for an increased rating for underlying disability as it did from his even earlier claim for service connection for this underlying disability. So, ultimately, the Board has to consider the effective date rules as they pertain to claims for service connection, not just instead as they concern claims for higher ratings for disabilities that already have been deemed service connected.
His formal claim for a TDIU was received by VA in August 2009, with the submission of the TDIU application on VA Form 21-8940. But prior to that, on February 14, 2006, he had submitted a statement requesting service connection for a bilateral leg condition, secondary to the service-connected low back disability. He also claimed entitlement to a higher rating for this underlying low back disability. And service connection was granted for the additional lower extremity radiculopathy in the RO's October 2006 decision, although a higher rating for the underlying low back disability was denied.
As, however, the Veteran did not file a claim for service connection for the associated leg disability within one year of his discharge from service, the absolute earliest effective date that he may receive is the date that he eventually filed this claim for service connection for the radiculopathy of his lower extremities, which was not until February 14, 2006. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A review of his claims file reveals there is no evidence of a prior claim (formal or informal) of entitlement to service connection for the radiculopathy of his lower extremities before February 14, 2006. It is worth reiterating that the effective date for a secondarily service-connected condition (which, here, is his lower extremity radiculopathy) is not identical to that of the original condition (his low back disability); the effective date could arise no earlier than the date on which he applied for benefits for the condition at issue, so not until he filed his claim specifically for his lower extremity radiculophathy. See Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). The effective date assigned for a secondary service-connected condition (radiculopathy) does not have to be the same as the effective date for the underlying condition (low back) simply because 38 C.F.R. § 3.310 states that a "secondary condition shall be considered a part of the original condition." See Ross v. Peake, 21 Vet. App. 528 (2008).
His initial rating claim regarding his low back disability was originally filed in October 2002 and appealed to the Board, which issued a final and binding decision regarding this matter in April 2010. The file does not reveal any additional documents that could be construed as either a formal or informal claim of entitlement to service connection (let alone a TDIU) prior to February 14, 2006.
It is additionally worth reiterating, concerning this, that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed with VA. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).
Therefore, the Board finds that the earliest date of claim for a TDIU was on February 14, 2006, which is the effective date currently assigned for the
service-connected radiculopathy of the lower extremities and that, along with the service-connected back disability, formed the basis of this derivative TDIU claim. . Therefore, the date of claim for entitlement to a TDIU is February 14, 2006. In Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court found that because the claim for a TDIU was received by VA within one year of the grant of service connection based on an initial application for benefits, the TDIU claim was part of the Veteran's initial application for benefits, not a part of a new claim for increased compensation. Here, however, the Veteran did not meet the schedular criteria for a TDIU as of February 14, 2006, as at that time his combined rating was only 50 percent. Therefore entitlement to a TDIU on a schedular basis did not arise until he met the schedular requirement for a TDIU as of May 4, 2009, when he had one disability rated as 60 percent when considering they arise from common etiology and involving the bilateral factor. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26.
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.
Based on the Veteran meeting the schedular criteria for a TDIU as of May 4, 2009, and the medical evidence of record establishing he was unemployable as of that date, the Board resolves all doubt in his favor and assigns an earlier effective date of May 4, 2009, for the TDIU. In order to receive an even earlier effective date, it has to be shown he was entitled to this benefit on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), which is addressed in the remand section below.
ORDER
The higher 20 percent ratings for the radiculopathy of the right and left lower extremities are granted from an earlier effective date - February 14, 2006, rather than just as of August 24, 2009, subject to the statutes and regulations governing the payment of VA compensation. However, ratings higher than 20 percent for these disabilities are denied.
An earlier effective date of May 4, 2009, rather than August 24, 2009, also is granted for the TDIU, also subject to the statutes and regulations governing the payment of VA compensation.
REMAND
As already alluded to, the Veteran did not meet the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU until May 4, 2009 (when he first for all intents and purposes had one disability rated as at least 60-percent disabling when considering his three disabilities arise from common etiology, so may be considered collectively in this determination, and since the lower extremity radiculopathy, since affecting both legs, involves the bilateral factor). 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Nevertheless, he may alternatively establish his entitlement to this benefit prior to May 4, 2009, on an extra-schedular basis pursuant to the alternative provisions of 38 C.F.R. § 4.16(b), provided that it is shown he was precluded from obtaining and maintaining substantially gainful employment, even prior to that date, solely due to his service-connected disabilities.
The Board is precluded from assigning a TDIU on this special alternative basis, in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008).
The record shows the Veteran has been awarded SSA disability benefits and found unable to work since 1999 due to his service-connected low back disability and non-service-connected psychiatric disorder. On his VA Form 21-8940 formal TDIU claim application in August 2009, he stated that he had been self-employed as a painter but had not worked since February 1999. He indicated he was unable to work because of his service-connected low back and leg disabilities.
A July 2006 VA spine examination report shows he stated that he had to stop working in 1999 because of problems with his low back and legs. He complained of constant back pain and numbness and tingling in both legs. He appeared to be unsteady and could only walk for one block or sit for one half hour to an hour, and avoided all activities. A February 2007 VA spine examination report also shows complaints of mild fatigue and decreased motion with constant pain in his low back and legs.
So although he did not meet the schedular criteria for a TDIU prior to May 4, 2009, the evidence of record raises the possibility of entitlement to a TDIU on an
extra-schedular basis prior to May 4, 2009. The Board therefore is referring this case for this special consideration.
Accordingly, the claim of entitlement to a TDIU even prior to May 4, 2009, is REMANDED for the following action:
1. Refer this claim for a TDIU prior to May 4, 2009, to the Director of VA's C&P Service or to the Under Secretary for Benefits for consideration and adjudication of the question of whether the Veteran was entitled to a TDIU on an extra-schedular basis during the time period from February 14, 2006 to May 4, 2009. During this time period, and as a result of the grants in this decision, he was service connected for a low back disability rated as 20-percent disabling and for radiculopathy of his lower extremities, with each lower extremity also rated as 20-percent disabling.
2. If a TDIU on this special extra-schedular basis for this immediately preceding period is not granted to his satisfaction, send him and his attorney an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.
The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs